Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Armed with a computer model in 1935, one could probably have written the exact same story on California drought as appears today in the Washington Post some 80 years ago, prompted by the very similar outlier temperatures of 1934 and 2014.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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Tag: amicus briefs

As Caleb noted earlier, today marks the one-year anniversary of Citizens United, a case I first thought ”just” concerned some weird regulation of pay-per-view movies, but turned out to be about asserted government power to ban political speech — including books and TV commercials — simply because the speaker was not one individual but a group (in corporate or or other associational form). See also this op-ed by ACLU lawyer Joel Gora.

Roger similarly noted the continuing discussion in Congress and elsewhere about the public financing of elections. As it turns out, the Supreme Court has agreed to hear a challenge to such a system, specifically Arizona’s Clean Elections Act. Brought by our friends at the Institute for Justice and the Goldwater Institute and supported by our brief at the cert petition stage, this lawsuit challenges a law that aimed to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. That is, if a privately funded candidate spends more than her publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the Clean Elections Act, the effects have been to significantly chill political speech: privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, matching funds provisions such as those at issue here diminish the quality and quantity of political speech.

In 2008, however, the Supreme Court struck down a similar part of the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents (Davis v. FEC, in which Cato also filed a brief). Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato’s latest brief thus asks the following question: Whether Arizona may give a publicly funded candidate extra money because a privately funded opponent or his supporters have, in the state’s judgment, spoken too much. We highlight Davis and numerous other cases that point to a clear answer: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The case is McComish v. Bennett, consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. The Court will hear it March 28, with a decision expected by the end of June.

Here’s the background: Seeking to restore beaches damaged by hurricanes, the Florida Department of Environmental Protection began dredging sand from the Gulf of Mexico ocean floor and transporting it to Florida’s gulf coast. The expanded area of the beach became state property, depriving beachfront landowners of their littoral rights. In reviewing the landowners’ lawsuit against the state, the Florida Supreme Court (SCOFLA, if you remember your Bush v. Gore trivia) departed from long-established state law principles protecting littoral property rights and held that littoral rights are an ancillary concept subsumed by the right of access. In so doing, the court effectively discarded 100 years of property law and rewrote the definition of property.

The U.S. Supreme Court had never formally addressed whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner’s due process rights, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Cato joined the National Federation of Independent Business Small Business Legal Center and the Pacific Legal Foundation on a brief supporting the landowners.

In June, Court finally decided Stop the Beach Renourishment v. Florida Department of Environmental Protection. The decision waded through a jumbled mass of arcane waterfront law to reach a very simple and unanimous holding: the Florida Supreme Court did not subvert an existing property right to such an extent that its decision constituted a “judicial taking.” The state won. The property owners lost. SCOFLA was vindicated.

Still, while all eight justices ultimately ruled for the state – Justice Stevens recused himself because his Florida property is subject to the renourishment program – six accepted the idea that judges can violate the Constitution by reinterpreting pre-existing property rights (albeit under two different theories), and the other two declined to reach the question. Although the Stop the Beach Court found that SCOFLA had not departed from sufficiently established state property law to constitute a taking, the idea of a judicial taking – whether through the Fifth Amendment’s Takings Clause or the Fourteenth Amendment’s Due Process Clause – is very much alive.

And that’s where our article in the Vermont Law Review picks up. In this article, Trevor and I examine the background of the judicial takings doctrine, react to the Court’s decision here in light of Cato’s amicus brief, and contrast Justice Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

While all the hot constitutional action of late, on issues ranging from Obamacare to gay marriage to immigration, has been in the lower courts — or even in Congress! — the Supreme Court still goes about its daily business. After last year’s blockbuster term, however, this term is pretty low-profile aside from a spate of First Amendment cases (funeral protests, violent video games, school choice tax credits, public financing of election campaigns, etc.). And so it was yesterday, when Supreme Court arguments over securities law and Western water rights were overshadowed by news of cases on which the Court decided not to rule:

Without comment, the Court denied an unusual request — a petition for a writ of mandamus — in the Gulf Coast global warming lawsuit, Comer v. Murphy Oil. This is the case, you may recall, where the Fifth Circuit lost its quorum as it was about to hear the en banc (whole court) appeal of a panel ruling that allowed the suit to proceed, resulting in the odd situation of the appeal being dismissed altogether and the district court decision to dismiss the lawsuit being the law of the case. Those complicated procedural twists would’ve made for an ungainly case, but the Supreme Court will hear a different global warming–related case, which I also previously discussed and in which Cato filed a brief.

The Court declined to review the constitutionality of a federal ban on felons’ possession of body armor (e.g., a bulletproof vest) — in a challenge arguing that these are issues properly left to the states, there being no interstate commerce connection. In ruling for the government, the Ninth Circuit (always them!) had applied a precedent that antedated the seminal cases of Lopez (1995) and Morrison (2000), where — as you know if you’ve been paying attention to the Obamacare lawsuits — the Court struck down the federal Gun-Free School Zones and Violence Against Women Acts, respectively, as beyond Congress’s power to regulate interstate commerce. Notably, Justice Thomas, joined by Justice Scalia in all but one footnote, filed a trenchant dissent from this cert denial (starts on page 33 here), saying that, ” Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence…. [The lower court’s] logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.” Perhaps more notably, neither the Chief Justice nor Justice Alito joined Thomas’s dissent. (H/T Josh Blackman)

The Court also declined to review the constitutionality of criminal convictions by non-unanimous juries — which are only allowed in Oregon (the place where this case originates) and Louisiana — denying a cert petition filed by UCLA law professor Eugene Volokh. The interesting angle here is that it’s not at all clear whether (1) all the rights protected by the Bill of Rights — here the Sixth Amendment requirement that jury convictions be unanimous — are “incorporated” against the states and (2) whatever incorporation there is goes through the Due Process Clause or the Privileges or Immunities Clause (which is important for courts’ consideration of the scope of constitutional rights). Recall that in McDonald v. Chicago, the Court extended the right to keep and bear arms to the states but could not agree on the jurisprudential methodology for doing so — yet still hinted that it would be open to revisiting these issues in a case relating to unanimous jury verdicts… but apparently not yet.

The Court took off its argument calendar a case regarding the sovereign immunity of Indian tribes, specifically whether that doctrine prevents the enforcement of property taxes against those legally peculiar entities. This is a huge issue for federalism, state revenues, and a host of other policy matters — and is quite complex legally — but New York’s Oneida tribe, perhaps fearing what would have been an epic loss at the Supreme Court, here decided to waive its immunity claim and thus moot the case.

After all this “active non-action” — which may be how the government next tries to characterize the non-purchase of health insurance in its next attempt to somehow find constitutional authority for the individual mandate — the Court did release one opinion of note today. The opinion itself, in a technical bankruptcy case regarding the compelling issue of whether a debtor can take a car-ownership deduction if she does not make loan or lease payments, is not particularly noteworthy, but the author — rookie Justice Elena Kagan — is. And so, with 18 dry pages and over a lone dissent by Justice Scalia, the Kagan era has begun.

Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.

In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.

Cato, joining the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech, filed a brief supporting a request that the Supreme Court reverse the Fifth Circuit and making three points:

First, by awarding the defendant fees for the entire suit based on the dismissal of one claim, the Fifth Circuit’s decision imposes prohibitive costs on the enforcement of civil rights.

Second, the exceptional timing of the fee award in this case — before resolution of the plaintiff’s related state-law claims — creates a dangerous precedent that threatens to derail civil rights actions. By prematurely deeming a plaintiff’s suit frivolous and ordering the plaintiff to pay the defendant’s fees before the conclusion of the litigation, the Fifth Circuit’s rule imposes financial penalties that would shut down legitimate lawsuits midstream.

Third, the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court. Otherwise, the threat of a fee award will improperly burden the plaintiff’s decision to bring a federal claim in state court at all — contrary to the law’s purpose here.

In addition to reversing the judgment below, the Court should reinforce that a mid-litigation fee award is improper when a plaintiff voluntarily drops a federal claim in order to return to state court. The Court will hear Fox v. Vice on March 22, with a decision expected in June.

The legal battle against Obamacare has hit the appellate court level. In October, a district court in Detroit granted the government’s motion to dismiss a lawsuit brought by the Thomas More Law Center and four individuals. The judge there endorsed the government’s theory that federal power under the Commerce Clause could reach the decision not to buy health insurance because that decision had a substantial effect on interstate commerce. The plaintiffs have appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, and Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief supporting that appeal.

We argue that the outermost bounds of existing Commerce Clause jurisprudence – the “substantial effects doctrine” – prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce. Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme. Even the district court recognized that “in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.” What Congress is attempting to do here is quite literally unprecedented. “The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance 1 (1994).

Nor has it ever said that people face civil penalties for declining to participate in the marketplace. Even in the seminal New Deal case of Wickard v. Filburn, the federal government claimed “merely” the power to regulate what farmers grew, not to mandate that people become farmers, much less to force people to purchase farm products. Finally, even if not purchasing health insurance is considered an “economic activity” – which of course would mean that every aspect of human life is economic activity – there is no legal basis for Congress to require individuals to enter the marketplace to buy a particular good or service. It is no more “proper” under the Necessary and Proper Clause for the federal government to “commandeer” individuals than to “commandeer” state officials.

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Cato joined the Center for Constitutional Jurisprudence in filing a brief supporting Bond’s request. We argue not only that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but that lower courts’ assumption that both the power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution. This assumption is premised on a perfunctory acceptance of an overly broad interpretation of Missouri v. Holland, 252 U.S. 416 (1920). That reading of Missouri v. Holland, however, is contrary to precedent, has been undermined by subsequent Court decisions, and if allowed to stand, will seriously undermine the notion that the federal government is one of only limited, enumerated powers.

The Court’s recognition that the constitutional issues Bond raises warrant serious review would begin the process of reconsidering the meaning of Missouri v. Holland and its progeny. Beyond the obviously erroneous ruling on standing here, this case offers the opportunity to reinforce limits on the expansion of federal criminal law into areas that should be handled at the state and local levels.

Many thanks to Cato legal associate Trevor Burrus for his help with our brief, which you can read here. The Court will be deciding early in the new year whether to hear the case.

The Supreme Court is finally starting to put some interesting non-First Amendment cases on this term’s docket.

Today, the Court agreed to review American Electric Power Co., Inc. v. Connecticut, in which eight states, some non-profits, and New York City are suing a number of energy companies and utilities for harms they allegedly caused by contributing to global warming. This is the third major lawsuit to push global warming into the courts (another being Comer v. Murphy Oil USA, in which Cato also filed a brief). It’s America, after all, where we sue to solve our problems – even apparently, taking to court the proverbial butterfly that caused a tsunami.

Mind you, you can sue your neighbor for leaking toxic water onto your land. Courts are well positioned to adjudicate such disputes because they involve only two parties and have limited (if any) effects on others. But it is a different case when, using the same legal theory by which Jones sues Smith for his toxic dumping (called “nuisance”), plaintiffs selectively sue a few targeted defendants for a (quite literally) global problem. As I discussed with reference to a previous such case, global warming is the type of issue that should be decided by the political branches. The Second Circuit ruled, however, that this suit could go forward. (Justice Sotomayor was involved in the case at that stage and so will be recused going forward.)

The Supreme Court has always recognized that not all problems can or should be solved in the courtroom. Thus, the issue in AEP v. Connecticut – which the Court will now decide – is whether the states meet the legal requirements necessary to have their suit heard in court, what lawyers call “standing.” Historically, issues of policy have been decided by the legislative and executive branches while “cases and controversies” have been decided by courts. Therefore, when litigants have asked courts determine matters of broad-ranging policy, the Court has often termed the cases “political questions” and dismissed them. The reasoning is that, not only do unelected courts lack the political authority to determine such questions, they also lack any meaningful standards by which the case could be decided (called “justiciability”).

Indeed, even if the plaintiffs can demonstrate causation, it is unconstitutional for courts to make complex policy decisions — and this is true regardless of the science regarding global warming. Just as it’s unconstitutional for a legislature to pass a statute punishing a particular person (bill of attainder), it’s unconstitutional — under the “political question doctrine” — for courts to determine wide-ranging policies in which numerous considerations must be weighed against each other in anything but a bilateral way.

We pointed out in our brief supporting the defendants’ request for Supreme Court review – and will again in the brief we plan to file at this next stage – that resolving this case while avoiding those comprehensive and far-reaching implications is impossible and that the Constitution prohibits the judicial usurpation of roles assigned to the other, co-equal branches of government. After all, global warming is a global problem purportedly caused by innumerable actors, ranging from cows to Camrys. This fact not only underscores the political nature of the question, but it has constitutional significance: In order to sue someone, your injury must be “fairly traceable” to the defendant’s actions. Suits based on “butterfly effect” reasoning should not be allowed to move forward.

Perhaps surprisingly, the federal government –which is involved because one of the defendants is the Tennessee Valley Authority – agrees with Cato . The administration aptly played its role in our constitutional system by asserting that global warming policy was a matter for the executive and legislative branches to resolve, not the judiciary.

Hmmm, Cato and Obama on the same side in a global warming dispute… but I still won’t be holding my breath awaiting an invite to the White House Christmas party.